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The machinery used to bring about legal relief.
“Civil procedure denotes the mode of proceeding by which a legal right is enforced, as
distinguished from the law which gives or defines the right, and which by means of the
proceeding the Court is to administer the machinery as distinguished from its product” –
Poyser v Minors (1881) 7 QBD 329 334
The machinery is created not for own purpose but for the purpose of manufacturing a
product.
The product of civil procedure is the enforcement of rights and obligations that have a basis
in law.
CIVIL PROCEDURAL LAW VS CRIMINAL PROCEDURAL LAW
Civil Procedural Law Criminal Procedural Law
Civil action: Plaintiff vs Defendant (institutes State vs. Accused
action vs. defends)
Civil application: Applicant vs. Respondent
(brings application vs opposes)
Decision: Is the defendant / respondent liable Decision: Is the accused guilty of a crime /
for the plaintiff / applicant’s claim? offence?
Balance of probabilities Beyond reasonable doubt
Punishment: Damages or specific performance Punishment: Fine, imprisonment or both
Aim of punishment: Monetary compensation Aim of punishment: Retribution, deterrence,
for loss suffered or to compel / prevent a party rehabilitation
from doing something.
HISTORICAL DEVELOPMENT
W de Vos Civil Procedural Law and the Constitution of 1996: an appraisal of procedural
guarantees in civil proceedings
W de Vos South African Civil Procedural Law in Historical and Social Context 2002
o Distinguishes between certain time periods and does so for the purpose of
expanding civil procedural law development.
o 1652 – 1795
- VOC, Holland, Roman-Dutch law
- Raad van Justitie
The only court in the Cape and so the highest court.
Problematic to a certain extent; members of the court were laymen
(no legal background or experience) and a distinction was made
between advocates and attorneys (only advocates required legal
knowledge).
- Characteristics – Continental
Characterised not by party control but court control. The court was
actively involved in the process of litigation; the court could be seen
as paternalistic.
Court decided the pace and nature of the litigation.
Lack of transparency – the proceedings were conducted in secret.
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,o 1795 – 1910
- British occupation
Did not have a significant impact on civil procedural law.
- English constitutional principle
The law of the conquered country remained in place until changed
by the British coloniser.
- Substantive law vs procedural law
- Roman-Dutch law English model
The English were dissatisfied.
A commission of enquiry was launched (1827 & 1830) – Charters of
Justice.
The effect of these charters was to replace the Roman Dutch
civil procedure with an English civil procedural law.
- Hybrid system
Holistically we have English influence, Roman Dutch law influence
and African customary law influence.
A distinction between substantive Roman Dutch law and procedural
English law is valid.
The English replaced the Raad van Justitie with the Supreme Court
which was further developed into the Supreme Court of Appeal.
o 1910 – 1994
- British rule ended
- Legislative reforms
Adversarial nature of civil litigation.
Parties and witnesses are allowed to be examined, testify
and provide evidence.
- Constitution: W de Vos Civil Procedural Law and the Constitution of 1996: an
appraisal of procedural guarantees in civil proceedings
o Constitutional impact
- Litigation involving organs of state: before or after constitutional
dispensation.
Before: if you wanted to litigate against an organ of state it was very
difficult – short prescriptive periods and technical processes.
After: Litigation against Certain Organs of State Act was developed
which extended the prescription period.
- Access to courts: S 38 of the Constitution
The provision that extends standing; enables you to bring a class or
public interest action. An action as a means of collective redress.
- Common law rule requiring arrest of foreign peregrini to found / confirm
jurisdiction: Bid Industrial Holdings (Pty) Ltd v Strang and another (Minister
of Justice and Constitutional Development, Third Party 2008 (3) SA 355
(SCA)
Confirming / founding jurisdiction
Previously you could arrest a party to establish jurisdiction.
However, now the power to arrest infringes on certain rights
such as the right to freedom.
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, - Arrest tanquam suspectus de fuga
The former remedy in civil procedural law that enabled you to arrest
a debtor who is suspected of fleeing or planning to flee to avoid
payment of the debt.
It is not for the purpose of establishing jurisdiction; it is simply to
keep the person here until the trial arrives.
COURT SYSTEM AND OFFICIALS
Magistrates’ courts (MC)
Creature of statute
o Point of departure is the legislation, the Magistrates’ Court Act supported by the
Magistrates’ Court rules
Created and function within the Magistrates’ Court Act
o The legislation sets out the framework for operation.
Two levels
o District Magistrate Court
- The lower of the two divisions.
- South Africa is divided into managerial districts.
- Each is served by a Magistrate Court.
o Regional Magistrate Court
- Magistrate Court for regional divisions.
o Districts are grouped together for the purpose of regional jurisdiction.
- Somerset West and Strand are grouped together and have one regional
court.
o There is a difference when comparing legal issues and matters.
- The District court does not have jurisdiction over divorces whereas a Reginal
Magistrates’ Court does.
o There is also a monetary jurisdictional perspective:
- Small Claims Court: R20 000
- District Magistrates’ Court: R 20 000 – R 200 000
- Regional Magistrates’ Court: R 200 000 – R 400 000
- For a claim above R400 000 approach the High Court
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, High Courts (HC)
High Court system after the constitutional dispensation
o 1 March 2009: High Courts’ names changed (Renaming of High Courts Act 30 of
2008).
All pleadings in the Western Cape High Court are to bear the following heading:
o “In the High Court of South Africa (Western Cape Division, Cape Town)”
Officials
High Court
o Judges
o Organisational work: Registrar
- Most important official
o Delivery of legal documents: Sheriff
- The sheriff is responsible for effecting service of documents initiating
proceedings or urgent court documents and for the execution of property
through sales in execution.
- These things have to be done timeously.
o Bill of costs: Taxing master
- If you are successful you are entitled to costs in your favour. These costs
have to be taxed.
- Bill of costs: a list and description of your activities in the matter, e.g. made a
telephone call to council, flew to Gauteng to conduct a consultation with a
client, had two meetings with witnesses, etc.
These activities are charged as per a tariff sheet.
The taxing master, in the presence of the opponents, taxes the bill
of costs.
- Usually the Registrar or clerk fulfils the job of taxing master.
o Master of the High Court
o Legal practitioners
Magistrate Court
o Magistrates
o Organisational / administrative work:
- District Magistrate Court: Clerk of Court
- Regional Magistrate Court: Registrar
o Delivery of legal documents: Sheriff
o Bill of costs: Taxing master
o Legal practitioners
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